PER CURIAM.
Defendant was convicted by a jury of first-degree premeditated murder, MCL
750.316(1)(a). He was sentenced to life in prison. He appeals as of right. We affirm.
I. FACTS
Defendant gave a statement to police, that on August 18, 2002, defendant entered a house
on Melrose Street where the victim was located. Defendant approached the victim and
questioned him regarding drug money he owed to defendant?s boss. After defendant determined
that the victim was approximately $250 short, defendant picked up a table leg lying next to the
door and struck the victim in the head. The victim fell to the floor and remained unconscious.
Present during the attack was Constance Harrell. On December 4, 2002, Harrell gave a
statement to Officer Kurtiss Staples, denying any knowledge of the murder. Later that same day,
James Fisher, an investigating officer, took another statement from Harrell, describing the event
on August 18, 2002. In the subsequent statement, Harrell stated that defendant, after hitting the
deceased in the head, and before leaving the house, threatened the remaining people in the house
by saying, ?I know everybody in this house right now . . . [i]f this shit go any further y?all next .?
Fisher described Harrell as trembling with fear and sincerely afraid for her life. During trial, and
despite a court order, Harrell refused to appear before the court. During trial, the court first
allowed Officer Staples to take the stand and read Harrell?s statement onto the record.
Investigator Fisher then took the stand and read Harrell?s subsequent statement onto the record.

II. MRE 804(b)(6)

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Defendant?s first issue on appeal is that the trial court abused its discretion when it
admitted unsigned, unsworn statements of a non-testifying witness as evidence under MRE
804(b)(6). We disagree.
A. Standard of Review
When reviewing a trial court’s decision to admit evidence under a hearsay exception, this
Court reviews for an abuse of discretion. An abuse of discretion exists if an unprejudiced person
would find no justification for the ruling made. A trial court’s decision on a close evidentiary
question does not amount to an abuse of discretion. People v Geno, 261 Mich App 624, 631-
632; 683 NW2d 687 (2004). When the decision involves a preliminary question of law, such as
whether a rule of evidence, statute, or constitutional provision precludes the admission of
evidence, a de novo standard of review is used. Therefore, when such preliminary questions are
at issue, this Court will find an abuse of discretion when a trial court admits evidence that is
inadmissible as a matter of law. People v Katt, 468 Mich 272, 278; 662 NW2d 12 (2003).
B. Analysis
Hearsay is defined as a statement, other than one made by the declarant while testifying
at a trial or hearing, which is offered in evidence to prove the truth of the matter asserted. People
v Tanner, 222 Mich App 626, 629; 564 NW2d 197 (1997); MRE 801(C). Hearsay is generally
not admissible as substantive evidence. Id.; MRE 802. Here, the statements in question were
given by Constance Harrell who did not testify at trial. The statements were being offered to
prove the truth of the matter asserted, that defendant murdered decedent with premeditation and
that the act was not in self-defense. Thus, the statements are hearsay.
When the prosecution moved to have Harrell?s statements admitted into evidence, despite
the fact that she did not testify at trial, the trial judge allowed the statements in under MRE
804(b)(6). MRE 804(b)(6) states that ?a statement offered against a party that has engaged in or
encouraged wrongdoing that was intended to, and did, procure the unavailability of the declarant
as a witness? will not be excluded by the hearsay rule. MRE 804(b)(6). . Here, defendant
threatened individuals who witnessed him kill decedent. After hitting decedent with a table leg,
defendant said, ?if it gets out I know who to go to,? and ?I know everybody in this house right
now . . . [i]f this shit go any further y?all next.? Officer Staples and Investigator Fisher both
stated that Harrell appeared scared when she talked to them and that she repeatedly stated that
she did not want to testify because she was fearful for her life. Harrell was subpoenaed and did
not show up to testify at trial. Given this evidence (that defendant made threats, the resulting
fear that was stricken into Harrell, and the fact that Harrell did not testify), the trial judge could
conclude, by a preponderance of the evidence, that defendant engaged in wrongdoing that was
intended to, and did, procure the unavailability of Harrell as a witness.
Furthermore, the United States Supreme Court in Crawford v Washington, 541 US 36,
(2004) sought to reinforce the criminal defendant?s Sixth Amendment right to confront a witness
offered against him. Crawford is absent of language concerning the circumstances of a witness?s
unavailability, when such unavailability was caused by the defendant. From a practical
standpoint, it would be grossly unfair to allow a defendant in a criminal matter to cause an
adverse witness to be unavailable, and then assert a Sixth Amendment violation arguing a
Crawford-type violation. To allow otherwise would facilitate threats or acts by a criminal

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defendant, against a potential witness, in order to prohibit statements or testimony, and thereby
grant a criminal defendant a ?constitutional defense? against all statements made by a witness
who was unavailable at the time of trial.

III. JURY INSTRUCTION
Defendant?s second issue on appeal is that the trial court erred when it denied defendant?s
request to instruct the jury on assault with intent to do great bodily harm less than murder. We
disagree.
A. Standard of Review
When reviewing a claim of instructional error, this Court reviews de novo. People v
Hall, 249 Mich App 262, 269; 643 NW2d 253 (2002). The issue of whether an offense is a
lesser included offense is a question of law, which will be reviewed by this Court de novo.
People v Mendoza, 468 Mich 527, 531; 664 NW2d 685 (2003).
B. Analysis
The Michigan Supreme Court, in People v Cornell, 466 Mich 335, 359; 646 NW2d 127
(2002), held that MCL 768.32(1)1 does not permit jury instructions on cognate lesser offenses,
but does permit instructions on necessarily included offenses if they are supported by a rational
view of the evidence. Id. at 359. ?[C]ognate lesser included offenses are related and hence
cognate in the sense that they share several elements, and are of the same class or category, but
may contain some elements not found in the higher offense.? People v Lemons, 454 Mich 234,
253; 562 NW2d 447 (1997). Necessarily included offenses are offenses whose elements you
would have to prove in order to prove the principal offense. Mendoza, supra at 541.
The crime of assault with intent to do great bodily harm less than murder presupposes
that the defendant’s act has not caused the death of the victim. If the victim has died and the
defendant’s admitted act constituted a legally cognizable cause of the death, jury instructions on
offenses not intended to punish acts causing death are precluded. If there is uncontested
evidence that decedent?s death was caused by the defendant’s acts, the court may not instruct on
merely assaultive offenses. For an instruction on an assaultive offense to be appropriate, there
must have been an independent, intervening cause of death. People v Bailey, 451 Mich 657,
671-672; 549 NW2d 325 (1996). In the instant case, the stipulated forensic pathology expert has
stated that decedent?s death was caused by blunt-force trauma to the head that was caused by
enormous velocity striking the head. Therefore, pursuant to Bailey, supra, the court should not
have instructed the jury on assault with intent to do great bodily harm less than murder, because
there was no intervening cause of death, and thus, it did not err in refusing to do so.

1 The statute reads as follows: ?Except as provided in subsection (2), upon an indictment for an
offense, consisting of different degrees, as prescribed in this chapter, the jury, or the judge in a
trial without a jury, may find the accused not guilty of the offense in the degree charged in the
indictment and may find the accused person guilty of a degree of that offense inferior to that
charged in the indictment, or of an attempt to commit that offense.? MCL 768.32(1).

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IV. EFFECTIVE ASSISTANCE OF COUNSEL
Defendant?s third issue on appeal is that defendant was denied his constitutional right to
effective assistance of counsel when counsel failed to produce three witnesses that defendant had
told him about. We disagree.
A. Standard of Review
When reviewing a claim of ineffective assistance of counsel, when an evidentiary hearing
is not previously held, this Court?s review is limited to the facts contained on the record. People
v Rodriguez, 251 Mich App 10, 38; 650 NW2d 96 (2002).
B. Analysis
To establish ineffective assistance of counsel, a defendant must show: (1) that counsel?s
performance was below an objective standard of reasonableness; and (2) that there is a
reasonable probability that, but for counsel?s error, the result of the proceedings would have been
different. People v Toma, 462 Mich 281, 302-303; 613 NW2d 694 (2000). To show that
counsel?s performance was below an objective standard of reasonableness, defendant must
overcome the strong presumption that his counsel’s actions constituted sound trial strategy under
the circumstances. Id. at 302. Counsel’s failure to call witnesses is presumed to be trial strategy.
People v Mitchell, 454 Mich 145, 163; 560 NW2d 600 (1997).
Defendant argued that trial counsel was ineffective for failing to produce Ezell Robinson,
Jr., Deandra Williams and Vincent Delks to testify. The record establishes that Robinson and
Williams were present when the incident occurred, that Williams and Delks were present at a
later time when Staples went to investigate the house, and that Williams and Delks were taken to
the police station to be questioned. However, the record does not establish if Robinson,
Williams and Delks were subpoenaed to testify, if efforts were made to get them to testify, if
they had anything of worth to testify to, or that it was not sound trial strategy to not have them
testify. Since this Court?s review is limited to the existing record, Rodriguez, supra at 38, and
since the record does not provide any evidence to rebut the presumption that counsel?s failure to
produce the witnesses was sound trial strategy, defendant?s claim of ineffective assistance of
counsel must fail. Mitchell, supra at 163.
V. SUFFICIENCY OF THE EVIDENCE
Defendant?s final issue on appeal is that there was insufficient evidence presented to
prove defendant guilty of first-degree premeditated murder beyond a reasonable doubt. We
disagree.
A. Standard of Review
When reviewing a claim that the evidence was insufficient to support defendant?s
conviction, this Court reviews the evidence presented in a light most favorable to the prosecution
and determines whether a rational trier of fact could have found that the essential elements of the
crime charged were proven beyond a reasonable doubt. People v Johnson, 460 Mich 720, 723;
597 NW2d 73 (1999).

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B. Analysis
The elements of first-degree premeditated murder are: (1) that the defendant killed the
victim, and (2) that the killing was willful, deliberate, and premeditated. People v Bowman, 254
Mich App 142, 151; 656 NW2d 835 (2002). Circumstantial evidence and reasonable inferences
arising from the evidence may constitute satisfactory proof of the elements of the offense.
People v Warren (After Remand), 200 Mich App 586, 588; 504 NW2d 907 (1993).
Here, defendant said that he hit decedent and then grabbed a stick and hit decedent in the
head with it. Harrell said that defendant grabbed a table leg and hit decedent on the head with it.
Stipulated forensic pathology expert Pietak said that decedent died from blunt-force trauma to
the skull, which would be caused by enormous velocity striking the head. Viewing this evidence
in a light most favorable to the prosecution, a rational trier of fact could find beyond a reasonable
doubt that defendant killed decedent. This element is also established by the fact that Harrell
said that defendant killed decedent, and that she stated that defendant said that he killed decedent
because he was short on money. Furthermore, viewing the evidence in a light most favorable to
the prosecution, a rational trier of fact could have concluded that defendant?s actions were not in
self-defense because a knife was not recovered at the scene, Harrell stated that decedent never
attacked defendant, and that after defendant?s conversation with decedent, defendant went and
grabbed a table leg and then proceeded to hit decedent on the head with it.
Defendant argues that he did not intend to kill decedent. However, since it is difficult to
ascertain a defendant?s state of mind, minimal circumstantial evidence is sufficient to establish a
defendant?s state of mind. People v McRunels, 237 Mich App 168, 181; 603 NW2d 95 (1999).
Here, the jury found that the killing was willful, deliberate, and premeditated. There was
evidence that defendant grabbed a table leg and struck decedent with enormous velocity, and that
defendant was told by his boss to ?kick [decedent?s] ass,? and defendant later went back to the
residence to brag about what he had done. Viewing this evidence in a light most favorable to the
prosecution, there was sufficient circumstantial evidence to allow the jury to infer that the killing
was willful, deliberate, and premeditated. Therefore, viewing the evidence in a light most
favorable to the prosecution, this Court concludes that sufficient evidence was provided to allow
a rational trier of fact to conclude that the elements of first-degree premeditated murder were
met.
Affirmed.
/s/ Bill Schuette
/s/ Peter D. O?Connell